Saturday, June 7, 2008

Juvenile justice and welfare act

The Juvenile Justice and Welfare Council (JJWC) under the Department of Justice has issued the implementing rules and regulations of R.A. No. 9344, or the “Juvenile Justice and Welfare Act of 2006”.

It cites Article 40 of the United Nations Convention on the Rights of the Child, which provides that the members states have the duty to recognize “the right of every child alleged as, accused of, adjudged, or recognized as, having infringed the penal law to be treated in a manner consistent with the promotion of the child’s sense of dignity and worth, taking into account the child’s age and desirability of promoting his/her reintegration”; that “whenever appropriate and desirable, the State shall adopt measures for dealing with such children without resorting to judicial proceedings, providing that human rights and legal safeguards are fully respected”; that the member states “shall ensure that children are dealt with in a manner appropriate to their well-being by providing for, among others, a variety of disposition measures such as care, guidance and supervision orders, counseling, probation, foster care, education and vocational training programs and other alternatives to institutional care”.

A main feature of R.A. No. 9344 is that CICIL are vrequired to underso a “diversion prgram” which refers to “an alternative, child-appropriate process of determining the responsibility and treatment of a child in conflict with the law on the basis of his/her social, cultural, economic, psychological or educational background without resorting to formal court proceedings”, in addition to “intervention programs” refer to “a series of activities designed to address issues that caused the child to commit an offense” and which “may take the form of counseling, skills training, education, and other activities that will enhance his/her psychological, emotional and psycho-social well-being”.

Under R.A. No. 9344, “juvenile justice and welfare system” is defined as “a system dealing with children at risk and children in conflict with the law, which provides child-appropriate proceedings, including programs and services for prevention, diversion, rehabilitation, reintegration and aftercare to ensure their normal growth and development”.

In addition to the basic human rights of a citizen under Art. III (Bill of Rights) of the 1987 Constitution, as implemented by relevant laws, every child in conflict with the law shall have the right:

1. not to be imposed a sentence of capital punishment or life imprisonment, without the possibility of release;

2. to be detained or imprisoned only as a last resort, which shall be for the shortest appropriate period of time;

3. to be separated from adult offenders at all times, to be conveyed separately to or from the court during court hearings, and to await the hearing of his/her own case in a separate holding area.

4. to bail and recognizance, in appropriate cases;

5. to testify as a witness in his/her own behalf under the rule on examination of a child witness;

6. to have his/her privacy respected fully at all stages of the proceedings;

7. to have restrictions on his/her personal liberty limited to the minimum, and where discretion is given by law to the judge to determine whether to impose fine or imprisonment, the imposition of fine being preferred as the more appropriate penalty;

8. to automatic suspension of sentence;

9. to probation as an alternative to imprisonment, if qualified under the probation law;

The concept of “restorative justice” guides the juvenile justice and welfare sysem. It is a principle that requires “a process of resolving conflicts with the maximum involvement of the victim, the offender and the community to achieve reparation for the victim, reconciliation of the offender, the offended and the community, reassurance to the offender that he/she can be reintegrated into society; and enhancement of public safety by activating the offender, the victim and the community in prevention strategies”.

A special procedure for taking child into custody is mandated by R.A. No. 9344.

From the moment the child is taken into custody, the law enforcement officer shall immediately notify the child’s parents/guardians, the local social welfare and development officer (LSWDO), and the Public Attorney’s Office of the child’s apprehension, not later than eight (8) hours after apprehension.

After explaining to the child in simple language and in a language or dialect that he/she can understand the reason for placing the child under custody, the offense that he/she allegedly committed, and his/her constitutional rights, the law enforcement officer shall immediately start the determination of the age of the child abd take the child immediately to the proper medical and health officer for a thorough physical and mental examination and thereafter turn over the custody of the child to the local social welfare and development officer (LSWDO) or other accredited non-government organizations immediately but not later than eight (8) hours.

A child in conflict with the law shall only be searched by a law enforcement officer of the same gender.

The law enforcement officer, specifically from the Women and Children Protection Desk where present, shall take the statement of the child during the initial investigation in the presence of the child’s counsel of choice or in the absence thereof, a lawyer from the Public Attorney’s Office, his parents, guardian, or nearest relative, as the case may be; and the local social welfare and development officer. In the absence of the child’s parents, guardian, or nearest relative, and of the LSWDO, the investigation shall be conducted in the presence of a representative of an NGO or faith-based group, or a member of the BCPC.

In taking the statement of the child, the law enforcement officer shall observe the following guidelines:

1. The investigation shall be child friendly and be conducted in a non-intimidating manner.

2. The interview of the child shall be conducted in a separate interview room to make the child feel comfortable and free to express him/herself.

3. The law enforcement officer shall use simple and understandable language in taking the statement of the child during the initial investigation.

4. The law enforcement officer shall allow the LSWDO, or the persons taking his/her place as above enumerated, to actively assist in conducting the initial investigation.

5. There should be enough privacy to avoid unnecessary interruptions, distractions and/or participation from non-parties that could humiliate or make the child uncomfortable.

6. The written statement to be prepared shall reflect the language used by the child and not the language used by the law enforcement officer.

The initial investigation shall be conducted in the best interest of the child and in a manner which allows the child to participate and to express him/herself freely.

The law enforcement officer conducting the initial investigation shall ensure that all statements signed or thumbmarked by the child during investigation shall be witnessed by the child’s parents or guardian, the LSWDO, or if not present, any other social worker, or counsel in attendance, who shall affix his/her signature to the said statement.

In the case of a child who is above fifteen (15) years of age but below eighteen (18) years of age, the law enforcement officer shall refer the records of the child to the LSWDO for an assessment if the child acted with discernment.

After the initial investigation, the law enforcement officer shall refer the case of the child to the LSWDO for intervention in accordance if the child is 15 years old or below or above 15 but below 18 years of age and acted without discernment.

Diversion is required if the child is above 15 but below 18 years of age and acted with discernment and the offense committed carries an imposable penalty of not more than six (6) years of imprisonment.

The record of the case shall be referred the prosecutor or judge if the child is above fifteen (15) but below 18 years of age and acted with discernment and the offense committed carries an imposable penalty of more than six (6) years of imprisonment.

In all cases, the law enforcement officer shall turn over the physical custody of the child to the LSWDO within eight (8) hours from apprehension, as required under Section 21(i) of R.A. No. 9344, even if the law enforcement officer has not yet exhausted all measures to determine the age of the child and even if the initial investigation has not yet been terminated.

In the event a child whose custody is turned over by the law enforcement officer is 15 years old or below, the LSWDO shall take all measures to release the child to the parents or guardians, or to any of the persons or organizations auithorized by R.A. No. 9344, and proceed with the development of appropriate programs as provided by the said law.

From the time he/she takes custody of the child in conflict with the law, the law enforcement officer shall handle the case of the child with utmost confidentiality. Particularly, the law enforcement officer shall:

(a) Use a system of coding that provides aliases for children taken into custody;

(b) Maintain a separate logbook for children in conflict with the law;

(c) Exclude the public, particularly the media, from the area where the child is being held in custody pursuant to Section 43 of the Act;

(d) Not provide any detail or information to the public, particularly the media, that shall lead to the identity of the child;

(e) Keep the results of the medical examination confidential; and

(f) Mark the records of the child and the report on the initial investigation as confidential.

The prohibited acts when in custody of child are:

1. A child in conflict with the law shall not be locked up in a detention cell.

2. The child shall not be detained in the provincial, city or municipal jail, even if there are quarters separate from adult detainees.

3. A child in conflict with the law shall not be searched by a law enforcement officer of the opposite sex.

4. The law enforcement officer having custody of the child shall refrain from using vulgar or profane words and from sexually harassing or abusing, or making sexual advances on the child in conflict with the law.

5. If handcuffs or other instruments of restraint are used on the child, the law enforcement officer shall record such fact in the report on the initial investigation, and the reason for the use of such instruments of restraint.

6. The law enforcement officer from the time of initial contact with the child shall avoid displaying or using any firearm, weapon, handcuffs or other instruments of force or restraint, unless absolutely necessary and only after all other methods of control have been exhausted and have failed.

7. The law enforcement officer shall avoid the use of violence or unnecessary force on the child in conflict with the law.

As to the matter of criminal responsibility, pursuant to Section 6 of R.A. No.9344, the following shall be exempt from criminal liability:

1. A child 15 years of age or under at the time of the commission of the offense;

2. A child above 15 years but below 18 years of age who acted without discernment at the time of the commission of the offense.

The exemption from criminal liability of children under thelaw does not include exemption from civil liability, which shall be enforced in accordance with existing laws.

The “presumption of minority” rule under Sec. 7 of R.A. No. 9344 provides that the child in conflict with the law “shall enjoy the presumption of minority” and “all the rights of a child in conflict with the law until he/she is proven to be eighteen (18) years old or older”.

Sec. 7 of R.A. No. 9344 gives “any person contesting the age of the child in conflict with the law prior to the filing of the information in any appropriate court (the right) to file a case in a summary proceeding for the determination of age before the Family Court which shall decide the case within twenty four (24) hours from receipt of the appropriate pleadings of all interested parties”. If a case has been filed against the child in conflict with the law and is pending in the appropriate court, “the person shall file a motion to determine the age of the child in the same court where the case is pending”. Meanwhile, the proceedings on the main case shall be suspended. In all proceedings, law enforcement officers, prosecutors, judges and other government officials concerned shall exert all efforts at determining the age of the child in conflict with the law.

Sec. 20 of R.A. 9344 provides that if it has been determined that the child taken into custody is 15 years old or below, the authority which will have initial contact with the child has the duty to “immediately release the child to the custody of his/her parents or guardian, or in the absence thereof, the child’s nearest relative” and “notify the LSWDO for the determination of appropriate intervention and prevention programs for the child”.

Under Rule 31.b of the IRR, If the parents, guardians or nearest relatives cannot be located, or if they refuse to take custody of the child, the child may be released by the authority having initial contact with the child to any of the following:

(1) A duly registered non-governmental organization, i.e., duly licensed and accredited by the DSWD;

(2) A faith-based organization;

(3) A barangay official;

(4) A member of the BCPC;

(5) An LSWDO; or

(6) The DSWD when and where appropriate.

If parents, guardians or relatives are unable to take custody of the child due to mental or physical incapacity or incarceration, the child shall be referred to alternative placement such as foster homes, in addition to what has been provided in the Act.

Immediately after being notified of the apprehension of the child fifteen (15) years old or below, the LSWDO, under Rule 31.c, shall:

(1) Prepare a case study report on the child; and

(2) Determine the appropriate intervention and prevention programs in consultation with the child and the person having custody over the child.

The LSWDO shall also determine if the child is abandoned, neglected or abused by his/her parents for purposes of filing a petition for involuntary commitment if necessary.

If the safety of the child is in danger in view of the alleged commission of the offense, the LSWDO shall encourage the parent or guardian of the child to request for temporary custody of the child to the DSWD or licensed and accredited NGOs.

In the event the parent or guardian does not agree to the request for temporary custody of the child, the LSWDO shall carefully review the case of the child and file a petition for involuntary commitment when sanctioned by law, in accordance with P.D. 603 and the SC Rule on Commitment of Children.

A petition for involuntary commitment may be filed by the LSWDO with the technical assistance of DSWD, or by the DSWD, per Rule 32, if:

(a) The child in conflict with the law is found by the LSWDO to be abandoned, neglected or abused by his/her parents; or

(b) The parents do not comply with the intervention and prevention programs as determined under Part VII of these Rules.

A child in conflict with the law is considered:

(a) “Abandoned” when the child has no proper parental care or guardianship or when the child’s parents or guardians have deserted him/her for a period of at least six (6) continuous months, as provided in Art. 141(2), Title VIII of P.D. 603;

(b) “Neglected” when his/her basic needs have been deliberately unattended or inadequately attended as provided in Art. 141(3) of P.D. 603; or

(c) “Abused” when upon the evaluation of the LSWDO, the child is found to be maltreated, whether habitual or not, as defined in Section 3(b) of Republic Act No. 7610, or the “Special Protection of Children Against Abuse, Exploitation and Discrimination Act” [“R.A. 7610”].

The filing of the petition for involuntary commitment shall be done in accordance with the provisions of Title VIII, Chapter 1 of P.D. 603 and the SC Rule on Commitment of Children.

The child in conflict with the law who is above fifteen (15) but below eighteen (18) years of age shall be exempt from criminal responsibility, unless he/she acted with discernment. Being exempt, the child shall be dealt with in the same manner as a child who is below the age of criminal responsibility as provided in Rule 30 and Part VII of these Rules. (Rule 33.a).

Per Rule 43.b, The LSWDO, after the law enforcement officer refers the records of a child who is fifteen (15) years old or above but below eighteen (18) years old as provided in Rule 25.f, shall prepare a report indicating an assessment if the child acted with discernment for the purpose of determining whether to proceed with intervention or with diversion.

After making an assessment, the LSWDO shall prepare a report showing the basis for the assessment if the child acted with or without discernment. This report shall be submitted to the law enforcement officer handling the case of the child. After receipt of the report by the LSWDO, the law enforcement officer shall conclude the initial investigation and refer the case of the child in accordance with Rule 26. (Rule 34.d).

Under Rule 34.e, If after consideration of the initial assessment that the child who is above fifteen (15) but below eighteen (18) years of age acted without discernment, the law enforcement officer refers the case of the child to the LSWDO for intervention, the LSWDO has the duty to:

(1) Immediately release the child to the custody of his/her parents or guardian, or in the absence thereof, the child’s nearest relative or to those listed in Rule 31 when appropriate; and

(2) Determine the appropriate intervention and prevention programs for the child as provided in Part VII of these Rules.

The intervention programs for the child exempt from criminal liability may include any or a combination of the following, per Rule 37:

(a) Counseling;

(b) Peer counseling and life skills training and education;

(c) Provision of support services to the family, e.g., parent effectiveness service, livelihood programs, skills trainings, etc.;

(d) Referral to other agencies for appropriate services, e.g., education, health, skills training, etc.; and

(e) Access to child and youth organizations in the community, such as but not limited to the Sangguniang Kabataan.

The intervention programs determined by the LSWDO also include programs for the parents and family of the child. The time frame of the intervention programs and the outcome desired shall be specified.

Per Rule 39, If the child and the parents, guardian or persons having custody of the child fail to comply with the intervention program, despite exhausting all efforts to assist them, the LSWDO may file the proper petition for involuntary commitment of the child pursuant to P.D. 603.

Under Rule 40, diversion refers to an alternative, child-appropriate process of determining the responsibility and treatment of a child in conflict with the law on the basis of his/her social, cultural, economic, psychological or educational background without resorting to formal court proceedings.

In implementing diversion, the following principles shall be considered:

(a) Use of positive measures;

(b) Full mobilization of all possible resources, which include the family, volunteers, schools and other community institutions;

(c) Effective, fair and humane dealing with the child; and

(d) Promotion of the well-being of the child.

Per Rule 41, pursuant to Section 23 of the Act, the child in conflict with the law shall undergo diversion proceedings if he/she:

(a) Is above fifteen (15) years but below eighteen (18) years of age;

(b) Acted with discernment; and

(c) Allegedly committed an offense with an imposable penalty of not more than six (6) years of imprisonment if diversion is conducted at the barangay, police or prosecutor’s level, and not more than twelve (12) years of imprisonment, if diversion is resorted to by the court.

Under Rule 42, as provided under Section 24 of the Act, if the imposable penalty for the offense committed is not more than six (6) years of imprisonment, diversion may be conducted at the:

(a) Katarungang Pambarangay level under the Punong Barangay as provided in Rule 43;

(b) Police investigation stage under the law enforcement officer as provided in Rule 44; or

(c) Inquest or preliminary investigation stage under the prosecutor as provided in Rule 55.

If the offense with the imposable penalty of not more than six (6) years imprisonment is a victimless crime, the diversion proceedings shall be conducted by the LSWDO in coordination with the BCPC.

If the imposable penalty for the offense committed exceeds six (6) years of imprisonment but not more than twelve (12) years of imprisonment, diversion may resorted to only by the court.

Undeer Rule 43, etc., the rules of the Katarungang Pambarangay may apply. A child in conflict with law may undergo diversion proceedings outside the criminal justice system when his/her case is referred to the barangay through the Lupon Tagapamayapa.

Diversion at the Katarungang Pambarangay level shall be conducted by the Lupon Tagapamayapa, chaired by the Punong Barangay, with the assistance of the members of the BCPC, as provided in Section 23 (a) of the Act. The Punong Barangay shall conduct mediation, family conferencing and conciliation and, where appropriate, adopt indigenous modes of conflict resolution with a view to accomplishing the objectives of restorative justice and the formulation of a diversion program.

The child and his/her family shall be present in the conduct of these diversion proceedings. The offended party may participate in the diversion proceedings. The absence of the offended party in the diversion proceedings or his/her disagreement in its conduct shall not prevent the proceedings from being conducted. The Punong Barangay shall, however, endeavor to obtain the participation and the consent of the offended party in the formulation of the diversion program.

Pursuant to Section 27 of the Act, the Punong Barangay handling the case shall, within three (3) days from determination of absence of jurisdiction or termination of the diversion proceedings as provided below, forward the records of the case to the:

(1) Law enforcement officer or prosecutor – when the child or the child’s parents/guardian does not consent to a diversion. Upon the issuance of the corresponding document, certifying to the fact that no agreement has been reached by the parties, the case shall be filed according to the regular process.

(2) Prosecutor or the court – when the case involves an offense with an imposable penalty of more than six (6) years imprisonment.

Under Rule 44, diversion shall be conducted at the law enforcement level when:

(1) After the conduct of diversion proceedings at the Katarungang Pambarangay level, the child or the child’s parents/guardian does not consent to a diversion and the Punong Barangay forwards the case of the child as provided under Rule 43.d (i);

(2) After the conduct of the initial investigation, the law enforcement officer determines that the child is above 15 but below 18 years of age, acted with discernment and allegedly committed an offense, that is not a victimless crime, with an imposable penalty of not more than six (6) years of imprisonment, as provided under Rule 26(2)(a).

Diversion at the police investigation stage shall be conducted by the law enforcement officer with the assistance of the LSWDO, as provided in Section 23(a) of the Act.

The nature of diversion proceedings to be conducted by the law enforcement officer and the participants therein shall be the same as that under Rule 43.c.

Pursuant to Section 23 of the Act, the law enforcement officer handling the case shall forward the records of the case to the prosecutor or judge when the case involves an offense with an imposable penalty of more than six (6) years imprisonment; or the child or the child’s parents/guardian does not consent to a diversion. The case records shall be forwarded within three (3) days from determination of absence of jurisdiction or termination of the diversion proceedings as above stated.

The prosecutor or judge to whom the records are referred shall conduct the preliminary investigation and determine whether or not the child should remain under custody and correspondingly charged in court.

Under Rule 4¸ diversion shall be conducted at the level of the LSWDO when after the conduct of initial investigation, the law enforcement officer determines that the child is above 15 but below 18 years of age, acted with discernment and allegedly committed a victimless crime where the imposable penalty is not more than six (6) years of imprisonment, as provided under Rule 26(2)(b).

The LSWDO shall meet with the child and his/her parents or guardians for the development of the appropriate diversion and rehabilitation program, in coordination with the BCPC.

Under Rule 46, where the imposable penalty for the crime committed exceeds six (6) years imprisonment, diversion measures may be resorted to only by the court and will proceed in accordance with the SC Rules on Juveniles in Conflict with the Law.

Per Rule 47, the authority conducting the diversion proceedings shall:

(1) Explain to the child and his/her family the objective of the diversion proceedings, the value of diversion and the consequence of not undergoing diversion.

(2) Ask the child of the circumstances of the offense, the motives or purpose of the offense and the factors that led the child to commit the offense.

(3) Ask the child of his/her personal circumstance including his/her parents and family, his/her peers and educational status.

(4) Make the child in conflict with the law understand the consequences of his/her actions and the corresponding responsibilities.

(5) Ensure that the child understands and realizes his/her accountability, be remorseful of his/her actions and takes on the responsibility in repairing the harm done in lieu of filing a formal case in the court.

The authority conducting the diversion proceedings shall also determine if diversion is appropriate and desirable based on the factors provided in the next Rule. Upon a finding that diversion is not applicable or desirable, the authority handling the diversion proceedings shall issue the corresponding document certifying to such fact and shall file the case according to the regular process.

The authority conducting the diversion proceedings shall ensure that the proceedings are child-friendly and sensitive to the needs, welfare and the protection of the rights of the child in conflict with the law. The authority shall use language that is simple and understandable to the child in conflict with the law.

Diversion proceedings shall be conducted in a place where the identities of the child and the parties concerned are kept confidential. There should be enough privacy to avoid unnecessary interruptions, distractions and/or participation from non-parties that could humiliate or make the child uncomfortable.

The DSWD, in consultation with the LGUs particularly LCPCs, shall formulate rules and guidelines that should be followed during the diversion proceedings to protect the child from coercion, intimidation, harm, abuse, or other actions detrimental to the child. Such guidelines shall ensure that the child understands the diversion proceedings in which he/she is involved.

Pending the conduct of the diversion proceedings, the custody of the child shall be given to the parents, guardians, relatives or any other responsible person in the community, taking into consideration the best interest of the child in conflict with the law.

The consent of the child and of the parents or guardian of the child shall be obtained in arriving at a contract of diversion. When the consent of either is not obtained, the diversion proceedings shall be terminated and the case of the child referred in accordance with Rule 51.

The diversion proceedings shall be completed within forty-five (45) days.

Diversion proceedings are deemed terminated when:

(1) A contract of diversion has been entered;

(2) The forty-five day period expires without any agreement reached;

(3) The child or his/her parents or guardian do not consent to a diversion;

(4) The authority conducting the diversion finds that diversion is not applicable based on the factors enumerated in the immediately preceding Rule.

Under Rule 48, a contract of diversion may be entered during the diversion proceedings when the child voluntarily admits the commission of the act as provided in Section 26 of the Act. The voluntary admission of the child during the diversion proceedings shall be only deemed as consent to undergo the diversion program and shall not be considered a plea of guilt.

Any admission of the child shall not be used against the child in any subsequent judicial, quasi-judicial or administrative proceedings. Neither shall the admission be used against the child through denial of privileges and opportunities, discrimination in treatment, or imposition of any form of liability or punishment by reason of such admission.

The contract of diversion containing the diversion program shall be effective and binding if accepted by the child and the parents or guardian of the child. The contract shall be in writing and signed by the:

(1) Child;

(2) Parents or guardian of the child;

(3) Authority that conducted the diversion proceedings (the Punong Barangay, the law enforcement officer or the prosecutor);

(4) Member of the BCPC assisting the Punong Barangay, in cases of diversion proceedings at the Katarungang Pambarangay level; and

(5) LSWDO in cases of diversion proceedings by the law enforcement officer or by the prosecutor.

The contract of diversion shall contain the individualized diversion program and shall stipulate the rights, responsibilities or accountabilities of the child, the parents or guardian and the offended party, when applicable.

The contract of diversion considers as the responsibility or accountability of the child to restore the harm done in view of the offense committed. As such, the authority conducting the diversion proceedings shall endeavor to obtain the agreement of the offended party in the formulation of the individualized diversion program contained in the contract of diversion by:

(1) Explaining to the offended party the benefits of forgiveness and diversion, and the need to reform the child within the auspices of the community instead of detention homes or rehabilitation centers once the child expresses remorse and a willingness to ask for forgiveness from the offended party; and

(2) Assuring the offended party that the LSWDO, together with the local government and the community, will take care of the responsibility of reforming and monitoring the child through various diversion programs.

However, the acceptance of the offended party is not required for a contract of diversion to be valid.

Per Rule 0, the community-based programs for diversion, as distinguished from the programs for intervention under Rule 18, shall respond to the special needs, problems, interests and concerns of children in conflict with the law through the establishment of community-based mechanisms and programs to prevent them from offending and re-offending.

The community-based programs for diversion shall be developed by the LGUs through the LSWDOs and the LCPCs, in coordination with the schools, youth organizations and other concerned agencies. These programs shall be consistent with the standards prescribed in the Act and guidelines issued by the DSWD.

The Sangguniang Kabataan, as prescribed by Section 17 of the Act, shall coordinate with the LCPC in the formulation and implementation of diversion programs in the community.

LGUs shall be responsible making the assessment and evaluation of the community-based programs for diversion in their annual report on the comprehensive juvenile intervention programs.

Per Rule 51, the child together with the parents or guardians shall present themselves to the competent authorities that imposed the diversion program at least once a month for reporting and evaluation of the effectiveness of the program.

Failure to comply with the terms and conditions of the contract of diversion, as certified by the LSWDO, shall give the offended party the option to institute the appropriate legal action.

In cases where the there is failure of diversion at the Barangay level, the Punong Barangay that conducted the diversion proceedings, upon a finding of failure to comply, may refer the case of the child to the law enforcement officer or prosecutor as if there is no consent to the diversion or that diversion is not appropriate and desirable for the child as provided in Section 29 of the Act.

In cases where the offense committed is a victimless crime, the LSWDO that conducted the diversion proceedings, upon a finding of failure to comply, may refer the case of the child to the prosecutor as if there is no consent to the diversion or that diversion is not appropriate and desirable for the child as provided in Section 29 of the Act.

Under Rule 52, the period of prescription of the offense shall be suspended until the completion of the diversion proceedings but not to exceed forty-five (45) days.

The period of prescription of the offense shall be suspended during the effectivity of the diversion program, but not exceeding a period of two (2) years.

Per Rule 53, a child in conflict with the law shall proceed to appropriate preliminary investigation in the following cases:

(a) The offense committed by the child in conflict with the law has an imposable penalty of more than six (6) years;

(b) Offended party opts to file an action with failure to comply with the terms of diversion;

(c) No consent or agreement to a diversion; and

(d) When considering the assessment and recommendation of the LSWDO, the prosecutor determines that diversion is not appropriate for the child in conflict with the law.

Per Rule 57, upon determination of probable cause by the prosecutor, the information against the child shall be filed before the Family Court within forty-five (45) days from the start of the preliminary investigation.

Rule 58 provides that If the child in conflict with the law is deprived of liberty at the time the prosecutor assumes jurisdiction of the case, the PAO has the duty to manifest to the court such fact with the objective of obtaining an immediate order of release from the Court.

Where the maximum penalty imposed by law for the offense with which the child in conflict with the law is charged is imprisonment of not more than twelve (12) years, regardless of the fine or fine alone regardless of the amount, and before arraignment of the child in conflict with the law, the court shall, pursuant to the SC Rules on Juveniles in Conflict with the Law, determine whether or not diversion is appropriate. (Rule 60).

Under Rule 61, children detained pending trial may be released on bail or recognizance as provided for under Sections 34 and 35 of the Act. In all other cases and whenever possible, detention pending trial may be replaced by alternative measures, such as close supervision, intensive care or placement with a family or in an educational setting or home. Institutionalization or detention of the child pending trial shall be used only as a measure of last resort and for the shortest possible period of time.

Per Rule 63, where a child is detained, the court shall order the:

(a) release of the minor on recognizance to his parents and other suitable persons;

(b) release of the child in conflict with the law on bail; or

(c) transfer of the minor to a youth detention home/youth rehabilitation center.

The court shall not order the detention of a child in a jail pending trial or hearing of his/her case.

Whenever detention is necessary, a child will always be detained in youth detention homes established by local governments, pursuant to Section 8 of the Family Courts Act, in the city or municipality where the child resides.

In the absence of a youth detention home, the child in conflict with the law may be committed to the care of the DSWD or a local rehabilitation center recognized by the government in the province, city or municipality within the jurisdiction of the court. The center or agency concerned shall be responsible for the child’s appearance in court whenever required.

Per Rule 65, once the child who is under eighteen (18) years of age at the time of the commission of the offense is found guilty of the offense charged, the court shall determine and ascertain any civil liability which may have resulted from the offense committed. However, instead of pronouncing the judgment of conviction, the court shall place the child in conflict with the law under suspended sentence, without need of application: Provided, however, That suspension of sentence shall still be applied even if the juvenile is already eighteen years (18) of age or more at the time of the pronouncement of his/her guilt.

Upon the recommendation of the social worker who has custody of the child, the court shall dismiss the case against the child whose sentence has been suspended and against whom disposition measures have been issued, and shall order the final discharge of the child if it finds that the objective of the disposition measures have been fulfilled. The discharge of the child in conflict with the law shall not affect the civil liability resulting from the commission of the offense, which shall be enforced in accordance with law. (Rule 67).

Per Rule 82, as provided in Section 5(h) of the Act, the public shall be excluded during the proceedings, from initial contact to the final disposition of the case, and all records from these proceedings shall not be disclosed directly or indirectly to anyone by any of the parties or the participants in the proceedings for any purpose whatsoever, except:

(a) To determine if the child in conflict with the law may have his/her sentence suspended;

(b) If the child in conflict with the law may be granted probation under the probation law; or

(c) To enforce the civil liability imposed in the criminal action.

Under Rule 86, as required under Section 43 of the Act, all authorities having contact with the child in conflict with the law or having access to the records of the child in conflict with the law shall undertake all measures to protect this confidentiality of proceedings, including the:

(g) Use of a system of coding that provides aliases for children taken into custody;

(h) Maintenance of a separate logbook and a separate police blotter for children in conflict with the law;

(i) Exclusion of the public, particularly the media, from the area where the child is being held in custody pursuant to Section 43 of the Act;

(j) Non-disclosure of any detail or information to the public, particularly the media, that shall lead to the identity of the child;

(k) Keeping the results of the medical examination confidential; and

(l) Marking of the records of the child and the report on the initial investigation as confidential.

Failure to undertake measures to maintain confidentiality is punishable under Sec. 62 of the Act.

A person who has been in conflict with the law as a child shall not be held under any provision of law, to be guilty of perjury or of concealment or misrepresentation by reason of his/her failure to acknowledge the case or recite any fact related thereto in response to any inquiry made to him/her for any purpose, pursuant to Section 43 of the Act. No person shall also be denied privileges and opportunities, discriminated against, punished or in any manner held liable or responsible for non-disclosure of any fact relating to his/her conflict with the law as a child. (Rule 87).

Under Rule 88, as provided in Section 57 of the Act, status offenses or offenses which discriminate only against a child, while an adult does not suffer any penalty for committing similar acts, shall not be punished. Any conduct not considered an offense or not penalized if committed by an adult, including but not limited to curfew violations, truancy, parental disobedience and the like, shall not be considered an offense and shall not be punished if committed by a child.

In the event a child is apprehended for or accused of committing status offenses, law enforcement officers have the obligation to immediately release the child and that the provisions of this Act on prevention, diversion or rehabilitation shall not apply.

Per Rule 89, As provided in Section 58 of the Act, all children shall be exempt from prosecution for the following offenses, being inconsistent with the United Nations Convention of the Rights of the Child:

(1) Vagrancy and prostitution under Article 202 of the Revised Penal Code;

(2) Mendicancy under Presidential Decree No. 1563; and

(3) Sniffing of rugby under Presidential Decree No. 1619.

Upon initial contact with the child found to have committed any of the offenses enumerated in Rule 89.a, the law enforcement officer shall immediately turn over the custody of the child to the LSWDO. The child shall undergo appropriate counseling and treatment program to be determined by the LSWDO as provided in Section 58 of the Act.

Under Rule 90, as provided in Section 59 of the Act, the provisions of the Revised Penal Code, as amended, Republic Act No. 9165, otherwise known as the Comprehensive Dangerous Drugs Act of 2002, and other special laws notwithstanding, no death penalty shall be imposed upon children in conflict with the law.



by:

Atty. Manuel J. Laserna Jr.

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